15:0488(105)CO - Overseas Education Association and Joseph Cardone -- 1984 FLRAdec CO
[ v15 p488 ]
15:0488(105)CO
The decision of the Authority follows:
15 FLRA No. 105
OVERSEAS EDUCATION ASSOCIATION
Respondent
and
JOSEPH CARDONE
Charging Party
Case No. 3-CO-93
DECISION AND ORDER
This matter is before the Authority pursuant to the Regional
Director's "Order Transferring Case to the Federal Labor Relations
Authority" in accordance with section 2429.1(a) of the Authority's Rules
and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts, accompanying exhibits, and the contentions of the
parties, the Authority finds:
The complaint alleged that the Respondent, Overseas Education
Association (OEA or the Union) violated section 7116(b)(1) of the
Federal Service Labor-Management Relations Statute (the Statute) /1/ by
publishing and distributing an article in its publication, The
Washington Journal, disparaging and ridiculing unit employee Joseph
Cardone, the Charging Party, and calling for revenge or reprisal against
him because he had filed an earlier unfair labor practice charge against
the Union under the Statute. In March 1981, Joseph Cardone filed a
charge with the Authority against the Respondent. /2/ In April 1981,
the Union distributed an edition of its Washington Journal, on page 12
of which appeared an article concerning two new unfair labor practice
charges that had been filed against the OEA. /3/ The article stated
that, "(i)n an attempt to protect the charging parties from the wrath of
our membership, the actual names will not be used." The charge filed by
Cardone was quoted verbatim in the article, as set forth below, except
that "Ima Turkey" was substituted for the Charging Party's real name:
On or about October 1979 and again on or about January 1981 OEA
officials did interfere with and restrain Ima Turkey, a unit
employee assigned as a teacher to the Aschaffenburg ES/JHS in the
exercise of his rights under the Act by attempting to penalize him
for having engaged in protected activities by filing a law suit
against him. Again in December 1980 the OEA faculty
representatives at Aschaffenburg ES/JHS protested Ima Turkey's
reading of an OEA Journal, stating vociferously before other unit
employees that because he was a non-member, he had no right to
read the OEA Journal, an external publication of the OEA, and that
he had stolen it from another teacher's mailbox. Again in
December 1980 as a result of the above incident OEA officials
reported Ima Turkey to the CID (Criminal Investigation Division)
of the U.S. Army for prosecution. The actions of the OEA were
motivated by an attempt to punish and penalize Mr. Turkey for
complaining about a lack of union representation and then filing
an unfair labor practice charge.
The article then concluded with the following statement concerning
the above charge filed by Cardone:
This obviously is a hot one which cries for vengeance. If
anyone in the area of Aschaffenburg could supply the librarian,
Mr. Turkey, with a copy of the Washington Journal, we would be
most appreciative. It is OEA policy to share our Journal with
both believers and nonbelievers and to accuse a librarian of
stealing a book or magazine is a dastardly accusation.
The General Counsel argues that the remarks contained in the
publication, which referred to Cardone as "Ima Turkey"; which gave
sufficient information so as to reveal Cardone's identity; which
suggested that Cardone would incur the wrath of the Union membership;
and which referred to his unfair labor practice charge as "a hot one
which cries for vengeance," exceeded the bounds of legally permissible
conduct. More specifically, the General Counsel argues that such
remarks would reasonably intimidate and discourage Cardone and other
employees from exercising their statutory right to file charges against
the Union. The Respondent Union, on the other hand, argues that the
remarks did not intimidate or coerce Cardone in the exercise of his
protected rights but, rather, constituted a valid communication to
employees relating matters of Union concern. By substituting "Ima
Turkey" for Cardone's name, the Respondent further argues, it was
attempting to protect Cardone and inject some humor into the situation.
Moreover, the Respondent argues that its "cries for vengeance" comment
was simply an expression of the Respondent's belief as to the merits of
the charge.
In the Authority's view, the remarks contained in the publication
were violative of section 7116(b)(1) of the Statute inasmuch as they
could reasonably tend to have a coercive effect on the exercise by unit
employees of their protected rights under the Statute. Thus, where a
Union publication designed to communicate matters of concern to unit
employees contains an article which not only describes an employee who
had filed an unfair labor practice charge against the Union in a
derogatory way, but also with sufficient particularity that his identity
could clearly be ascertained; suggests that the employee needs
protection from the wrath of the Union membership for having filed such
a charge; and concludes that the filing of such charges "cries for
vengeance," the Authority finds that such remarks constitute implied
threats which tend to have a coercive and restraining effect not only on
the particular employee in the exercise of his protected rights under
the Statute, but also on other employees who might similarly wish to
engage in such rights protected by the Statute. Accordingly, the
Authority concludes that the Respondent's conduct violated section
7116(b)(1) of the Statute. /4/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Federal
Service Labor-Management Relations Statute, the Authority hereby orders
that the Overseas Education Association, shall:
1. Cease and desist from:
(a) Threatening Joseph Cardone, or any other employee, with vengeance
or reprisals by its members for filing an unfair labor practice charge
under the Federal Service Labor-Management Relations Statute.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Post at its business offices and its normal meeting places,
including all places where notices to member and non-member overseas
teachers are customarily posted, copies of the attached Notice on forms
to be furnished by the Federal Labor Relations Authority. Upon receipt
of such forms, they shall be signed by the President of the Overseas
Education Association, or his designee, and shall be posted and
maintained for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to members and other employees are
customarily posted. Reasonable steps shall be taken to insure that such
Notices are not altered, defaced, or covered by any other material.
(b) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, in writing,
within 30 days from the date of this Order, as to what steps have been
taken to comply herewith.
Issued, Washington, D.C., August 9, 1984
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
NOTICE TO ALL MEMBERS AND OTHER EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR MEMBERS AND OTHER EMPLOYEES THAT:
WE WILL NOT threaten Joseph Cardone, or any other employee, with
vengeance or reprisals by our members for filing an unfair labor
practice charge under the Federal Service Labor-Management Relations
Statute.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.
Labor Organization
By: (Signature) (Title)
Dated: . . .
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority whose address
is: P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone
number is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ Section 7116(b)(1) provides:
Sec. 7116. Unfair labor practices
. . . .
(b) For the purpose of this chapter, it shall be an unfair
labor practice for a labor organization--
(1) to interfere with, restrain, or coerce any employee in the
exercise by the employee of any right under this chapter(.)
/2/ That charge, in Case No. 3-CO-81, was subsequently withdrawn.
/3/ The first charge referred to in the article is not at issue
herein.
/4/ See Federal Election Commission, 6 FLRA 327 (1981); National
Army and Air Technicians Association, Local 371, 7 FLRA 154 (1981).